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Court of Criminal Appeal 25 October 2024

Stanton v R

[2024] NSWCCA 185

Assault & violenceTheft & propertyPublic order & justice offences
CRIME — APPEALS APPEAL AGAINST SENTENCE AGGREGATE SENTENCE APPEAL AGAINST SENTENCE OFFENDERS DISPARITY BETWEEN SENTENCES

Citation: Stanton v R [2024] NSWCCA 185
Court: Court of Criminal Appeal
Date: 25 October 2024
Judge(s): Davies J, Garling J, Chen J

Background

The applicant pleaded guilty in the Local Court to numerous offences committed across two main periods of offending in January and February 2022. The community offending included a residential break, enter and steal at Maryland, a series of armed robberies and break-ins at five establishments in a single night using a stolen Mercedes, and the knowing driving of a stolen motorcycle. The applicant was on bail for other offences at the time.

While held on remand at Parklea Correctional Centre, the applicant and a co-offender engaged in a violent confrontation with three correctional officers, brandishing improvised weapons, making death threats, setting four fires, and barricading a wing with furniture. The District Court sentenced the applicant to an aggregate term of 11 years imprisonment with a non-parole period of 6 years, commencing 4 April 2022.

The applicant sought leave to appeal on two grounds: that the aggregate sentence was manifestly excessive, and that he had a justifiable sense of grievance arising from a disparity between his sentence and that of his co-offender, Aaron Creighton.

Legal Issues

  • Whether the aggregate sentence of 11 years with a non-parole period of 6 years was manifestly excessive, including whether specific indicative sentences were too high and whether there was excessive accumulation
  • Whether the applicant had a justifiable sense of grievance about the disparity between his sentence and the co-offender Mr Creighton's aggregate sentence of 12 years with a non-parole period of 7 years
  • Whether, when assessing manifest excess of an aggregate sentence, individual indicative sentences or the degree of accumulation between them are properly the subject of appeal

Decision

Ground 1: Manifest Excess

The court rejected the submission that individual indicative sentences were too high. The indicative sentence for the residential break, enter and steal was found to be within the available range, given the offence occurred at night when occupants were present and the applicant was on bail for similar offending (at [70]). The indicative sentence for the Hot Bread shop offence was upheld because the weapon was used to force the victim's compliance, and the minimal value stolen could not reduce the seriousness of the threat (at [71]). The indicative sentences for the three custodial weapon offences were similarly upheld, with the court noting that the victims were correctional officers, an aggravating factor under the Crimes (Sentencing Procedure) Act 1999, and that the threats were explicit threats to kill (at [72]).

The court held that the community offending constituted a rampage across five establishments in a single night, preceded by a serious break, enter and steal to obtain a getaway vehicle. The custodial offending amounted to a riot, involving threats to kill three officers, four fires set in a confined custodial environment, and sustained resistance to the riot squad (at [78]-[79]). The aggregate sentence of 11 years with a 6-year non-parole period was not manifestly excessive in those circumstances (at [80]).

Ground 2 (Parity): Justifiable Sense of Grievance

The court rejected the parity ground. The sentencing judge had given detailed consideration to parity when sentencing Mr Creighton. Where both offenders had indicative sentences for the same offences, those sentences were either identical or explicable by differences in Form 1 matters. Both offenders had similar backgrounds and comparable youth, and those factors were treated consistently (at [95]). The modest disparity in the aggregate sentences was explained by two significant differences: Mr Creighton was convicted of an additional charge of armed robbery causing wounding, and his criminal history was worse. Those differences were appropriately reflected in his increased maximum sentence, longer non-parole period, and lesser reduction in the statutory ratio (at [95]).

Garling J's Additional Remarks on Pleading Manifest Excess

Garling J added observations on the way the manifest excess ground was framed. His Honour confirmed that manifest excess describes a latent error in the result, not a patent or identifiable error, and is established when the court can conclude that some misapplication of principle must have occurred even if it cannot be specifically identified (at [102]-[103]). Attacking an aggregate sentence by identifying allegedly excessive indicative sentences is contrary to principle because indicative sentences are not amenable to appeal (at [110]). Asserting excessive accumulation invites the court to undertake the complex staircase analysis that aggregate sentencing is designed to avoid (at [111]). A submission that insufficient weight was given to subjective matters does not amount to an appellable error under the House v The King standard (at [112]).

Orders Made

  • Time for the applicant to appeal extended to 26 July 2024
  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the manifest excess ground, the Court of Criminal Appeal confirmed that where an aggregate sentence is imposed for multiple offences, the only sentence amenable to a ground of manifest excess is the aggregate sentence itself. Individual indicative sentences are not amenable to appeal, and errors in indicative sentences do not necessarily render the aggregate sentence excessive (at [77], [107]).

  • When imposing a single aggregate sentence, the principal focus for a sentencing judge is to ensure the sentence reflects the totality of the criminality involved. Requiring identification of a cascading or stairway structure of accumulation would substantially diminish the benefit of aggregate sentencing (at [104]-[105]).

  • A parity ground does not give rise to a justifiable sense of grievance where the same judge gave detailed consideration to parity, imposed identical indicative sentences for shared offences, and where the co-offender's higher sentence was explicable by an additional serious conviction and a worse criminal record (at [95]-[96]).

  • Garling J emphasised that manifest excess is a conclusion about latent error, not a vehicle for identifying patent errors such as excessive indicative sentences, excessive accumulation, or insufficient weight given to subjective matters. Framing a manifest excess ground by reference to such matters is contrary to settled principle (at [109]-[113]).

  • Offending in a custodial environment that involves threats to kill correctional officers and the setting of fires in confined spaces where inmates cannot escape was treated as warranting substantial sentences, with the court noting the aggravating statutory factor of victims being correctional officers and the extreme danger posed by fires in custody (at [72], [79]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) ss 33, 97, 112, 113, 114, 154A, 195
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A, 53A, 56
- Road Transport Act 2013 (NSW) s 53

Cases
- BJS v R [2013] NSWCCA 123; (2013) 231 A Crim R 537
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- CMB v Attorney General for NSW (2015) 256 CLR 220; [2015] HCA 9
- Dunn v R [2023] NSWCCA 1
- El Masri v R [2022] NSWCCA 27
- Estephan v R [2015] NSWCCA 100
- Haines v R [2021] NSWCCA 149
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
- JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 548
- Lam v R [2014] NSWCCA 50
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- PD v R [2012] NSWCCA 242
- R v Jeremiah [2016] NSWCCA 241
- Rowland v R [2024] NSWCCA 187
- Simpson v R [2019] NSWCCA 137
- Stocco, Gino v R; Stocco, Mark v R [2018] NSWCCA 77
- Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36
- Wang v R [2023] NSWCCA 208